HomeMy WebLinkAbout20190509Protective Agreement.pdfPROTECTIVE AGREEMBNT
BETWEEN PACIFICORP DBA ROCKY MOUNTAIN POWER
IDAHO PUBLIC UTILITIES COMMISSION STAFF
(AND OTHER PARTIES AS APPLICABLE)
rN CASE NO. PAC-E-Ie-tr4
This Protective Agreement is entered into this lSt66y of February by PacifiCorp dba
Rocky Mountain Power ("Rocky Mountain Power" or "Company") and the Idaho Public Utilities
Commission ("Staff'), and other parties as applicable.
Recitals:
l. WHEREAS, Rocky Mountain Power and Stafflanticipate that parties to this proceeding
may make requests to provide, or make available for revierv, cefiain information, considered by its
custodian to be of a trade secret, privileged or confidential nature (hereinafter "Confidential
Information") as defined in ldaho Code $$ 74-107 through 74-109 and 48-801.
2. WHEREAS, Rocky Mountain Power and the undersigned parties agree that entering into
a Protective Agreement will expedite the production of documents; will afford the necessary
protection to the Company's and the undersigned parties' employees and"/or representatives in the
20 I 9 Idaho Energy Cost Adj ustment Mechanism ("20 I 9 ECAM") who might review the information
and subsequently be requested to reveal its contents by setting forth clear cut parameters for use of
Confidential Information, and will protect Confidcntial Information which might be provided during
the course of the 2019 ECAM, now therefore,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
l. (a) Confidential Information
All documents, data, information, studies and other materials furnished pursuant to any
requests for infbrmation, subpoenas or other modes of discovery (formal or informal), and including
depositions, that are clairned to be "Confidential Information" shall be so marked by the parry or
entity providing the information by stamping the sanre with a designation indicating its trade secret,
proprietary or confidential nature and printed on yellow paper. IDAPA 3 I .01 .01 .067 .A2. If in
electronic forrn, the Confidential Information shall be reproduced separately on a CD-ROM or other
approved storage device and clearly marked as Confidential Information. Id. A claim of
confidentiality must be accompanied by an attorney's certificate that the material is protected by larv
RECEIVED
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PROTECTIVE AGREEMENT
from public disclosure and cite the specific legal authority to support the claim. See Rules 67.03 and
233; IDAPA 3 1.01.01.067.03 and .233.
(b)Protection of Confidential Information
Access to and review of Confidential Information shall be strictly controlled by the terms of
this Agreement. Unless otherwise ordered, Confidential Information, including transcripts of
depositions containing information to which a claim of confidentiality is made, shall remain under
seal, shall continue to be subject to the protective requirements of this Agreement, and shall not be
disclosed to individuals who have not executed the nondisclosure agreement set forth in Exhibit "A."
rDAPA 3 1.01.01 .067 .03-.04. .287.
(c)Use of Confidential Information
All persons who may be entitled to review, or who are afforded access to any Confidential
Information by reason of this Agreement shall neither use nor disclose the Confidential Information
for purposes of business or competition, or any purpose other than the purpose of preparation for and
conduct of the 2019 ECAM, and then solely as contemplated herein, and shall keep the Confidential
Information secure as trade secret, confidential or proprietary information and in accordance with the
purposes and intent of this Agreement.
(d) Persons Entitled to Review
Access to Confidential Information shall be limited to counsel of the undersigned parties,
employees, experts, agents or representatives of the undersigned parties who have executed an
Exhibit "A" to this Agreement. Such information will be clearly marked and protected from
unauthorized public disclosure.
(e) Non-disclosureAsreement
Confidential Information shall not be disclosed to any person who has not signed a non-
disclosure agreement on this form, which is attached hereto as Exhibit "A" and incorporated herein.
The non-disclosure agreement or Exhibit "A" shall require the person to whom disclosure is to be
made to read a copy of this Protective Agreement and to certi$ in writing that he or she has
reviewed the same and has consented to be bound by its terms. The Agreement shall contain the
signatory's full name, permanent address and employer. Such agreement shall be delivered to
counsel for the providing party, before disclosure is made.
2PROTECTIVE AGREEMENT
2. Corries
No copies or transcriptions of the Confidential Information shall be made by the recipient
except as necessary to make the information available to individuals who have executed an Exhibit
"A" to this Protective Agreement.
3. Non-waiver of Obiection to Admissibility
The furnishing of any document, information, data, study or other materials pursuant to this
Protective Agreement shall in no way limit or waive the right of the providing party to object to its
relevance or admissibility in the 2019 ECAM before this Commission.
4. Challenge to ConfidentialitY
(a) Initial Challense
This Protective Agreement establishes a procedure for the expeditious handling of
information that a party claims is confidential. Any party may challenge the characterization of any
information, document, data or study claimed by the providing party to be a trade secret, proprietary
or confidential information. A party seeking to challenge the confidentiality of any information shall
first contact counsel for the providing party and attempt to resolve any difference by stipulation.
Resolution may include removing the confidential classifications, creating a non-confidential
summary, reformatting the information, etc. IDAPA 31.01.01 .067 .04.
(b) Subsequent Challense
In the event that the parties cannot agree as to the character of the information challenged,
any party challenging the confidentiality may petition the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all parties to the 2019 ECAM
who have signed an Exhibit "A" as provided in this Protective Agreement. The Petition shall
designate with specificity the document or material challenged and state the grounds upon which the
subject material are deemed to be non-confidential by the challenging party.
(c) Challense Hearins
The challenging party shall request that the Commission conduct an in camera proceeding
where only those persons duly authorized to have access to such challenged materials under this
Protective Agreement shall be present. This hearing shall be commenced no earlier than five (5)
business days after serving the Petition on the providing party and the Commission. The record of
the in camera hearing shall be maTked "CONFIDENTIAL - Subject to Protective Agreement."
aJPROTECTIVE AGREEMENT
To the extent necessary, the transcript of such hearing shall be separately bound, segregated, sealed,
and withheld from public inspection by any person not bound by the terms of this Agreement. See
Rule 287, IDAPA 31.01.01.287.
(d) Determination
The parties will ask the Commission to issue an Order determining whether any challenged
information or material is not properly deemed to be exempt from public disclosure pursuant to the
Idaho Public Records Act (ldaho Code $$ 7 4-l0l through 7 4-126). If information is found to be not
exempt from disclosure, no party shall disclose such challenged material or use it in the public
record, or otherwise outside the proceedings for at least five (5) business days unless the providing
party consents to such conduct. This procedure enables the providing party to seek relief and to
separate non-exempt material from that found to be confidential. Such relief may be sought from the
Commission or a court of competent jurisdiction.
5. (a) Receipt Into Evidence
Provision is hereby made for receipt into evidence in the 2019 ECAM of materials claimed to
be confidential in the following manner:
(l) If the requesting party intends to use Confidential Information or to make
substantive reference to Confidential Information supplied to it under this
Agreement, it shall give reasonable prior notice of such intention to the
providing party and shall provide copies of the used Confidential Information
or substantive reference to Confidential Information only to the providing
party, and such other parties, if any, who have executed an Exhibit "A" to this
Protective Agreement.
(2) One (1) copy of the used Confidential Information or substantive reference to
Confidential Information or substantive reference to Confidential Information
described in paragraph 5(aXl) shall be placed in the sealed record.
(3) The copy of the documents to be placed in the sealed record shall be tendered
by counsel for the providing party to the Commission, and shall be
maintained in accordance with the terms of this Protective Agreement.
4PROTECTIVE AGREEMENT
(b) Seal
While in the custody of the Commission, materials containing Confidential Information shall
be marked "CONFIDENTIAL SUBJECT TO ATTORNEY'S CERTIFICATE OF
CONFIDENTIALITY" and shall not be examined by any person except under the conditions set
forth in this Agreement, if applicable.
(c) /n Camerc Hearinq and Transcripts
Any Confidential Information that must be orally disclosed at a hearing in the 2019 ECAM
shall be offered at an in camera hearing, attended only by persons authorized to have access to the
information under this Protective Agreement. Rule 243, IDAPA 31.01.01.243. Similarly, any
transcription of any examination or other reference to Confidential Information (or that portion of the
record containing Confidential Information) shall be marked and treated as provided herein for
Confidential Information. Rule 287, IDAPA 31.01 .01.287.
(d) Access to Record
Access to sealed testimony, records, and information shall be limited to the Commission and
persons who have signed an Exhibit "A" as provided in this Protective Agreement, unless such
information is released from the restrictions of this Agreement either through agreement of the
parties or after notice to the parties and hearing, pursuant to the order of the Commission and/or the
final order of a court having final jurisdiction.
(e) Arrneal
Should an appeal from the proceeding be taken, sealed portions of the record may be
forwarded to any court of competent jurisdiction for purposes of an appeal, but under seal as
designated herein for the information and use of the court. See Idaho Court Administrative Rules
32(g)( I ), ( l5), and (i). If a portion of the record is forwarded to a court under seal for the purposes of
an appeal, the providing party shall be notified which portion of the sealed record has been
designated by the appealing party as necessary to the record on appeal.
6. Use ta fleadlusq
Where references to Confidential Information in the sealed record or with the custodian is
required in pleadings, briefs, arguments, or motions (except as provided in Paragraph 5), it shall be
by citation to title or exhibit number or some other description that will not disclose the substantive
Confidential Information contained therein. Any use of or substantive references to Confidential
5PROTECTIVE AGREEMENT
Information shall be placed in a separate section of the pleading or brief and submitted to the
Commission pursuant to Paragraph 5. This sealed section shall be served only on counsel of record
who have signed the nondisclosure agreements set forth in Exhibit "A" attached to this Protective
Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit
,,Arr.
7. Summary of Record
If deemed necessary by the Commission, the providing parties shall prepare a written
summary of the Confidential Information referred to in Orders to be issued to the public and the
parties.
8. Return or Destruction of Confidential Information
(a) Upon request of the providing party, all original documents and copies of the
Confidential Information shall be: (1) returned to the providing party; or (2) at the option of the
recipient destroyed within thirty (30) days after the final settlement or conclusion ofthe proceedings,
including administrative or judicial review thereof. After return or destruction of documents
pursuant to this paragraph, and upon request, a written receipt veri$ing return or destruction shall be
provided by counsel.
(b) On a case-by-case basis and upon notification to Rocky Mountain Power, the
Commission Staff may retain one copy of the Confidential Information under seal. Notwithstanding
any other provision in this Agreement, any member of Staff may review and use that copy of the
Confidential Information outside this proceeding while performing his or her duties as a Staff
member by signing an Exhibit A. Staff s use and disclosure of the Confidential Information in a
later Commission proceeding shall be subject to any protective agreement signed in the subsequent
proceeding.
(c) Any notes maintained by a recipient of Confidential Information which embody or
reflect any of the Confidential Information provided under this Agreement shall, upon request of the
providing party, be either retumed to the providing party or, at the option ofthe recipient, destroyed.
9. Effective Date
This Protective Agreement shall become effective on the date hereof.
10. Jury Waiver
To the fullest extent permitted by law, each of the parties hereto waives any right it may have
6PROTECTIVE AGREEMENT
to a trial by ju.y in respect of litigation directly or indirectly arising out of, under, or in connection
with this agreement. Each party further waives any right to consolidate any action in which a jury
trial has been waived with any other action in which a jury trial cannot be or has not been waived.
7PROTECTIVE AGREEMENT
DATED this *-_ day of February, 2019
ROCKY MOUT{TATN POWER
R. Hogle
General Counsel
West North Temple, Suite 320
Salt Lake City, Utah 841 l6
Attorneys Representing
Rocky Mountain Power
IDAHO PUBLIC UTILITIES COMMISSION STAFF
ry <e{l zrrt t\
Edward J'$well
Deputy Attorney General
ldaho Public Utilities Commission
472 West Washington Street
Boise, lD 83702
Attomey Representing
Idaho Pubtic Utilities Commission Slaff
IPROTECTIVE ACREEMENT
DATED this _ day of February, 2019
ROCKY MOUNTAIN POWER
Yvonne R. Hogle
Assistant General Counsel
1407 West North Temple, Suite 320
Salt Lake City, Utah 841 l6
Attorneys Representing
Rocky Mountain Power
IDAHO PUBLIC UTILITIES COMMISSION STAFF
/11 7-1r(tl
Edward tr$well
Deputy Attorney General
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise, lD 83702
Attorney Representing
Idaho Public Utilities Commission Staff
8
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PROTECTIVE AGREEMENT
EXHIBIT "A''
I have reviewed the foregoing Protective Agreement dated February 1,2019, in Case
No. PAC-E-19-04 (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Matt Hunter,Attorney General
Idaho Public Utilities Commission
Employer or Firm
472 W. WashiustqqStreet, Boise, ID 83702-5918
Business Address
Commission Staff
Partv
,cV,//:,/ tq
Date
PROTECTIVE AGREEMENT
-)
EXHIBIT "A'
I have reviewed the foregoing Protective Agreanent dated ,2019, in Case
No. PAC-E-l9-_ (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Culbertson
Idaho Public Utilities Commission
Employer or Firm
472 W. Washington Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
Z-'l - )*otct
Date
PROTECTTVE AGREEMENT
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement aated L/7 ,2019, in case
No. PAC-E-19-- (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreernent.
Brad
Idaho Public Utilities Commission
Employer or Firm
472 W. Washineton Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
O/-h
Date
PROTECTIVE AGREEMENT
EXHIBIT *A"
I have reviewed the foregoing Protective Agreement dated 2019, in Case
No. PAC-E-I9-_(2019 ECAM) and agree to be bound by the terms and conditions of such
Agreonent.
Idaho Public Utilities Commission
Employer or Firm
472 W. Washineton Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
L/
Date
erry
PROTECTIVE AGREEMENT
EXHIBIT ..A"
I have reviewed the foregoing Protective Agreement dated February 1,2019, in Case
No. PAC-E-19-04 (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Keller
Idaho Public Utilities Commission
Employer or Firm
472W. Washineton Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
41,,1 ,,
DaC T l
\
PROTECTIVE AGREEMENT
EXHIBIT "A"
I have reviewed the foregoing Protective Agreement dated February 1,2019, in Case
No. PAC-E-19-04 (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Terri Carlock
Idaho Public Utilities Commission
Employer or Firm
472 W. Washineton Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
Date
PROTECTIVE AGREEMENT
EXHIBIT O'A"
I have reviewed the foregoing Protective Agreement dated February 1,2019, in Case
No, PAC-E-19-04 (2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Louis
Idaho Public Utilities Commission
Employer or Firm
472 W-Slashiqslon Street. Boise. ID 83702-5918
Business Address
Commission Staff
Party
Zo-
Date
PROTECTIVE AGREEMENT
EXHIBIT ..A'
I have reviewed the foregoing Protective Agreement dated 2019, in Case
No. PAC-E-|9-_(2019 ECAM) and agree to be bound by the terms and conditions of such
Agreement.
Donn
Idaho Public Utilities Commission
Employer or Firm
472W. Washington Streel, Boise,ID 83702.5918
Business Address
Commission Staff
Party
Z- 1'/?
Date
PROTECTIVE AGREEMENT